Wisconsin judge says Marquette was justified in punishing professor for publicly criticizing graduate student by name

Submitted by Scott Jaschik on May 5, 2017 - 3:00am

If John McAdams's 2014 blog post about his concerns about the conduct of a teaching assistant at Marquette University had not named her, his criticisms would have been protected by the First Amendment and the university would have had no business punishing him, a Wisconsin judge said Thursday.

But McAdams named the graduate student, and the wide readership of his blog, Marquette Warrior[1], quickly picked up on his comments. The graduate student said she was harassed by people who learned of the controversy from the blog, and she eventually transferred to another institution. The university punished McAdams, saying that naming a graduate student in this way violated his professional responsibilities. He was suspended and told he needed to apologize for his actions. He refused and sued, saying that his right of freedom of expression and other rights were being violated.

Judge David Hansher wrote in his decision that academic freedom must be respected but that the university had legitimate grounds to bar professors from publicly expressing criticism of graduate students.

"Academic freedom also gives both students and faculty the right to express their views without fear of sanction, unless the manner of expression substantially impairs the rights of others," Judge Hansher wrote. "On the other hand, academic freedom does not mean that a faculty member can harass, threaten, intimidate, ridicule or impose his or her views on students. Neither does academic freedom protect faculty members from disciplinary action or sanctions for professional misconduct, when there has been due process."

McAdams and his supporters have said that Marquette's actions represent a severe limitation on the rights of faculty members to speak out. But the judge's decision noted that McAdams has agreed that had the graduate student been in his department, it would have been wrong for him to name her. (She was in the philosophy department, and he was in political science.) The decision suggested that McAdams, by acknowledging the limit he would have placed on his speech involving graduate students in his department, was simply drawing the line in a different place from the university, but was agreeing that some limits on speech are a part of professional responsibility.

The McAdams distinction thus "makes no sense," the judge wrote.

In a deposition in the case, McAdams said he named the graduate student because he was following, in his blog, "norms of journalism." But Hansher wrote that McAdams "is not employed by Marquette as a journalist," but as a professor.

The Roots of the Dispute

The judge's opinion (like that of a Marquette faculty panel that reviewed the case before he was suspended) focused on the professional issues related to naming a graduate student in public, not the nature of McAdams's criticism of Cheryl Abbate, the graduate student.

In his November 2014 blog post, McAdams accused Abbate of shutting down a classroom conversation on marriage equality, based on her own political beliefs. His account was based on a recording secretly made by a disgruntled student who wished that the instructor, Abbate, had spent more time in class one day on the topic of gay marriage, which the student opposed.

McAdams said Abbate, in not allowing a prolonged conversation, was “using a tactic typical among liberals,” in which opinions they disagree with “are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.”

Abbate said McAdams had distorted her actions -- and that she wasn't trying to shut down an argument she disagreed with, but simply wanted to keep a focus on an in-class conversation about the philosopher John Rawls’s equal liberty principle. But conservative blogs spread McAdams's take on the situation -- and Abbate quickly found herself receiving a flood of hateful email messages, some of them threatening.

Much of the decision concerns the question of how much deference courts should give to university decisions on professional and academic matters. McAdams argued that Marquette should receive no deference. The university argued it should receive considerable deference, and the judge came out closer to the university's position. In general, courts do give colleges and universities deference on many matters. The decision on deference was important because McAdams charged that one of the members of the faculty committee that reviewed his case was biased because she had signed an open letter defending Abbate and criticizing McAdams. But applying the deference theory, the judge ruled that the university had considered the issue of potential bias, and thus had met its responsibility.

Split Reactions

Players in the case weighed in with sharply different reactions.

“No college professor in Wisconsin has any real protection if that’s the standard,” said a statement[4] from Rick Esenberg, president and general counsel of the Wisconsin Institute for Law and Liberty, which has represented McAdams. “If a professor can be held responsible for the actions of every person who reads or even hears about what the professor writes, then they have no protections at all. By that standard, every professor who was publicly critical of McAdams should be fired, too.”

John K. Wilson, an independent scholar who writes about academic freedom issues and who was an expert witness who testified in defense of McAdams, posted on the blog[5] of the American Association of University Professors to say that the judge ignored key issues, and in particular the university's demand that McAdams apologize as a condition of ending his suspension.

"It is absolutely astonishing for a college to ban a professor permanently for the crime of disagreeing with the administration’s punishment of him, particularly when there has been absolutely no due process involved in this new thought-crime punishment of McAdams," Wilson wrote. "McAdams has never had a hearing for the crime of 'not apologizing.' No faculty committee has ever endorsed punishing him for disagreeing. And there is no rule requiring faculty who are punished to agree with the punishment, so McAdams is not in violation of any Marquette policies."

Michael R. Lovell, president of Marquette, issued a statement[6] praising the judge's ruling.

"We’ve maintained throughout this process that a personal attack on one of our students is simply unacceptable," Lovell said. "We appreciate the court’s thoughtful consideration of the Faculty Hearing Committee’s work and findings. Dr. McAdams’s tenured peers on the Faculty Hearing Committee concluded, unanimously, that he breached his core duties as a Marquette professor when he used his blog needlessly and recklessly to harm a Marquette graduate student. We are grateful that the court upheld Marquette’s actions."